Defendant further argues that
Andresen's serial requests for defendant's consent to search his person and,
subsequently, his small change pocket constituted exploitation of an unlawful
seizure. In particular, defendant contends that he consented to the first
search based on Andresen's unlawful seizure and consented to the second search
because he was aware that Andresen had observed his failure during the first
search to empty his small change pocket. Thus, defendant argues, his consent
to the second search was not made independently of the unlawful seizure or his
consent to the first search, and he was entitled to suppression of the
resulting evidence.

The state responds that Andresen
permissibly sought defendant's consent to search during the course of a lawful
traffic stop and that Andresen's request did not extend the duration of the
stop because, at the time of the request, he had neither issued a citation for
the traffic infraction nor exceeded the time reasonably required to do so. The
state argues that, as in State v. Amaya, 176 Or App 35, 29 P3d 1177
(2001), aff'd on other grounds, 336 Or 616, 89 P3d 1164 (2004), Andresen's
actions resulting in defendant's consent to search constituted lawful questions
posed during the course of a single, lawful stop. The state further argues
that, even assuming that Andresen's request for consent to search unlawfully
extended the stop, the challenged evidence was not discovered as a result of
Andresen's exploitation of that illegality; rather, Andresen sought defendant's
consent to search based on his knowledge of defendant's previous conviction for
possession of methamphetamine and his knowledge that defendant was on probation
for that crime. Thus, the state contends, there was no "but for"
relationship between the claimed illegality and Andresen's request for
consent. As to whether there was any relationship between the claimed
illegality and defendant's giving of consent, the state points to the trial
court's finding that, "[f]rom the get go, [defendant] was playing the cat
and mouse game. * * * I don't find that anything that the officer did changed
[defendant's] amenability to being searched."

Our resolution of defendant's
assignment of error requires us to determine whether Andresen unlawfully extended
the duration of the initial, lawful traffic stop and, if he did so, whether the
challenged evidence was obtained through exploitation of that unlawful conduct.
Determining whether a traffic stop was unlawfully extended is a fact-specific
inquiry. See, e.g., State v. Raney, 215 Or App 339, 343, 168 P3d
803 (2007), modified on other grounds on recons, 217 Or App 470, 175 P3d
1024, rev den, 344 Or 671 (2008).

As we explained in State v.
Rodgers, 219 Or App 366, 182 P3d 209, rev allowed, 345 Or 301
(2008), questioning unrelated to the initial basis for a stop can lead to
unlawful prolongation of the stop in two situations. In the first situation,
an officer concludes a lawful stop (for example, by telling a person that he or
she is free to leave) and then initiates a second stop by questioning the
person about unrelated matters without reasonable suspicion of further criminal
activity. Id. at 371. In the second situation, an officer, without
letting the person know expressly or by implication that he or she is free to
leave, detains the person beyond the time reasonably required to investigate
the initial basis for the stop and to issue a citation, without the requisite
reasonable suspicion. Id. at 371-72. In either case, the extension of a
lawful stop is unlawful unless it is supported by reasonable suspicion of criminal
activity. Id. at 372; see also State v. Broughton, 221 Or App 580,
587-88, 193 P3d 978 (2008).

In this case, we conclude that
Andresen extended the initial, lawful traffic stop beyond the time reasonably
required to investigate and cite defendant for the traffic infraction. Nothing
in the record indicates that, at the time that Andresen requested defendant's
consent to search his person, he was awaiting the results of a records check,
was waiting for defendant to provide him with items needed to continue the
traffic stop, or was engaging in any other steps related to the investigation
of the traffic offense or the issuance of a citation for that offense.
Although Andresen would have been free to question defendant about matters
unrelated to the traffic offense during an "unavoidable lull" in his
investigation of the offense, he was not similarly free to question him about
unrelated matters as an alternative to going forward with the next step in
processing the infraction, such as the writing or issuing of a citation. See
Rodgers, 219 Or App at 372-73.

The state insists that Andresen did
not actually extend the duration of the stop because he could have
lawfully begun to write a citation at the time that he questioned defendant.
Because the time spent writing such a citation would not have constituted an
extension of the stop, the state argues, the fact that Andresen chose to use
that time to question defendant likewise should not constitute an extension of
the stop. We have rejected the same argument in previous cases. See Rodgers,
219 Or App at 373 (rejecting that argument); see also Broughton, 221 Or
App at 590 (same). We adhere to those decisions in this case.

We turn, then, to whether the
extension of the stop was supported by reasonable suspicion of criminal
activity. Reasonable suspicion requires that an officer subjectively believe
that a person has committed a crime and that the belief be objectively
reasonable in light of the totality of the circumstances. ORS 131.605(5); see
also State v. Foland, 224 Or App 649, 654, 199 P3d 362 (2008); State v.
Ehret, 184 Or App 1, 7, 55 P3d 512 (2002).

In this case, we conclude that, even
assuming that Andresen subjectively believed that defendant was in possession
of a controlled substance, that belief was not objectively reasonable.
Andresen did not testify as to any observations about defendant that would have
supported such a belief; rather, Andresen formed his belief based entirely on
his knowledge of defendant's prior conviction for possession of methamphetamine
and his related probation status. Indeed, the state does not argue on appeal
that Andresen had any other information supporting a belief that defendant had
committed or was about to commit a crime.

We addressed the lawfulness of a stop
under similar circumstances in State v. Stone, 223 Or App 724, 196 P3d
95 (2008). In that case, the officer lawfully stopped the defendant for a
traffic violation. During the stop, the officer recognized the defendant as
someone who previously had admitted to using methamphetamine. Based on that fact
alone, the officer asked the defendant to step from her car and questioned her
about whether she was then in possession of methamphetamine. Id. at
726. When she admitted that she was in possession of methamphetamine, she was
cited for unlawful possession of a controlled substance. At trial, she moved
to suppress the evidence, but the trial court denied the motion. Id. at
726-27. On appeal, the state confessed error, conceding that the mere fact
that the officer knew that the defendant, at some time in the past, had
committed a crime did not supply an objectively reasonable basis for believing
that currently she was engaging in criminal activity. We accepted the
concession, concluding that the officer indeed lacked reasonable suspicion that
the defendant had committed a crime. Id. at 727-28. This case is
materially indistinguishable from Stone.

Having concluded that Andresen's
conduct in extending the stop violated defendant's rights under Article I,
section 9, of the Oregon Constitution we turn to whether the evidence must be
excluded on the ground that it was obtained as a result of exploitation of that
illegal conduct. Under State v. Hall, 339 Or 7, 25, 115 P3d 908 (2005),
we first consider whether the defendant has established the existence of a
minimal factual nexus--that is, a "but for" relationship--between the
evidence sought to be suppressed and the unlawful police conduct. Once a
defendant shows that nexus, the state has the burden to prove that the
discovery of the evidence was independent of, or only tenuously related to, the
unlawful police conduct. Id. at 34-35.

Deciding whether the state has met
that burden requires a fact-specific inquiry into the totality of the
circumstances to determine the nature of the relationship, if any, between the
officer's conduct and, as pertinent here, a defendant's consent. Id. at
35. Considerations relevant to determining whether a causal connection exists
between unlawful detention of a defendant and the defendant's consent to
search, so that suppression of evidence seized during the search is
appropriate, include: (1) the temporal proximity between the unlawful police
conduct and the defendant's consent; (2) the existence of any intervening
circumstances; and (3) the presence of any circumstances, such as a police
officer informing the defendant of the right to refuse consent, that mitigated
the effect of the unlawful police conduct. Id. As we explained in Rodgers,
once the factual nexus is shown, suppression is required "unless the state
can prove that the disputed evidence inevitably would have been discovered, was
independently discovered through lawful means, or was sufficiently attenuated
from the unlawful police conduct." 219 Or App at 371.

In this case, the state argues that
defendant has not shown even the required minimum factual nexus because, from
the moment that Andresen stopped him, the deputy recognized him as a person
whom he previously had arrested for, and who previously had been convicted of,
possession of methamphetamine. According to the state, under that
circumstance, Andresen would have requested defendant's consent to search at
some point during the stop irrespective of whether the deputy unlawfully
extended it. The state further argues that, by the same reasoning, Andresen's
request for consent to search was not prompted by anything that occurred during
or as a result of the unlawful extension, such as defendant's failure during
the search to empty his change pocket.

We disagree that defendant has not
established a "but for" relationship. To begin with, the state's
contention is predicated on a conjecture regarding Andresen's intent from the
beginning of the lawful stop. There is nothing in the record, however, to
support the conjecture that Andresen would have requested consent to search
defendant anyway. Aside from that, the fact remains that Andresen made that
request, and discovered the relevant evidence, during the unjustified extension
of the initial lawful stop. See State v. Hendon, 222 Or App 97, 107, 194
P3d 149 (2008) (where the officer searched the defendant and discovered the
relevant evidence during an unlawful extension of a lawful stop, the defendant
established a minimum factual nexus between the officer's unlawful conduct and
the discovery of the evidence). That is sufficient to show the required
nexus. We therefore consider, finally, whether the state met its burden to
prove that defendant's consent was independent of, or only tenuously related
to, the unlawful police conduct.

We conclude that the state did not
meet that burden. Minimal time, if any, elapsed between the extension of the
stop, the request for consent to search, and the discovery of the evidence;
indeed, the request to search itself constituted the unjustified extension of
the stop. Nor were there any intervening or mitigating circumstances:
Andresen did not tell defendant that he was free to leave or that he could
refuse to consent. See State v. Hitchcock/Winters, 224 Or App 77,
88-89, 197 P3d 33 (2008) (reaching same conclusion based on similar facts).
Considering the totality of the circumstances, the state has not met its burden
of proving that the challenged evidence did not derive from the exploitation of
Andresen's unlawful extension of his initial, lawful stop of defendant.

In sum, defendant was unlawfully
stopped when, rather than completing the issuance of the traffic citation and
without adequate suspicion of criminal activity, Andresen asked defendant for
consent to search his person. Moreover, there was a factual nexus between that
unlawful conduct and defendant's consent to the search that resulted in the
discovery of the challenged evidence, and no intervening circumstance severed
that connection. The trial court erred in denying defendant's motion to
suppress. It follows that his conviction in Case Number A130175 must be
reversed and the case remanded to the trial court.

Because defendant's conduct resulting
in his conviction for possession of a controlled substance in Case Number
A130175 also formed the basis for the trial court's finding that defendant
violated his probation in Case Number A130305, the judgment in the latter case
must also be reversed and remanded to the trial court for reconsideration in
light of the reversal of defendant's conviction in Case Number A130175. See
State v. McMilian, 191 Or App 62, 69, 80 P3d 538 (2003), rev den,
337 Or 248 (2004) (remanding judgment revoking probation for reconsideration where
revocation was based on convictions in separate case and Court of Appeals was
reversing convictions; citing State v. Brown, 53 Or App 666, 669, 633
P2d 20 (1981)).

Finally, because we reverse and
remand on defendant's first assignment of error, we need not address his second
assignment, relating to admission of the laboratory report identifying the
discovered substance.